Sterling v. Marine Bk. of Crisfield

Stockbridge, J., delivered the opinion of the Court. The questions involved in this proceeding are comprehended within a very narrow compass. The appellant, Sterling, sued the Marine Bank of Crisfield for damages resulting from an attachment which the bank had caused to be issued and under which the stock of tobacco, candies and soft drinks of the plaintiff had been taken. The bond given at the time of the issuance of the attachment was not a proper one, and the attachment was, on motion, quashed.

The claim of the plaintiff is for damages to the goods thus wrongfully taken, and for the destruction of or interruption to his business. The declaration does not allege any malice upon the part of the bank, or make any claim for punitive damages, and the chief question in the case is as to what is the proper measure of damages in the case of this character. ³⁹⁸ The 37th bill of exception was reserved to the action 'of the trial Court in overruling a motion of the plaintiff to amend his declaration by interlineation; the motion being made after all of the testimony for both plaintiff and defendant had been offered. Exactly why this motion of the plaintiff should have been overruled is not clear in view of the very liberal provision for amendment provided by the statute (Code 1912, Art. 75, sec. 35). Nor can the rule laid down in Scarlett v. The Academy of Music, 43 Md. 208 , that “the allowance of an amendment, provided it be within the power of the Court granting the leave to make it, is not the subject of an exception nor of review by this Court” be invoked in this case,' as here the action of the Court was not allowing an amendment, but refusing to allow one.

The amendment proposed, was of itself entirely proper, and while the declaration might have been sufficient without it, it was certainly improved if the amendment as offered was made, and it was error to have refused to permit it. This ruling, however, was not of so serious a nature that if it constituted the sole error in the case it would require a reversal of the judgment, but inasmuch as the judgment must be reversed upon other grounds, it is proper to express the view of this Court upon this exception. The remaining thirty-six exceptions were all reserved to offers of testimony, and since most of them deal with one aspect or another of the proper measure of damages, it 'will be proper to state what the rule is, and then group the ■various exceptions accordingly. The fourth exception was to the refusal of the trial Court to permit the plaintiff to answer the question as to the profits derived by him from the conduct of his pool room, run in connection with the store; this ruling of the Court was entirely correct, since the pool tables and their appurtenances were-not taken'or removed'by-the' sheriff'in the execution of the attachment, and' the plaintiff téstifiéd- that' after the levy of the attachment he still carried on some business on his pool tables; ³⁹⁹ Ill the third exception, the Oourt has refused to permit the plaintiff to answer the same question as put to him in the question to which the 4th exception is reserved, adding to it the profits received or derived by him from his store, as well as his pool room.

This ruling likewise was proper, for the reason already given, and the further reason that the question as put to the witness did not require or ask him to distinguish the profits derived from the store from those derived from the pool room. The thirteenth exception was to the refusal of the tidal Oourt to permit the witness to state the persons from whom he purchased his stock. That was manifestly an immaterial inquiry, so far as any issue in the case was involved, and the refusal of the Oourt to permit the witness to answer was proper. It is practically conceded in this case that the value of the goods taken by the sheriff under the writ of attachment sued out by the bank, was $250, and by its several rulings the Oourt below limited the plaintiff in his recovery to the actual value of the goods, it being in evidence that the goods taken had, by the time that the attachment was quashed, become so damaged as to be of little or no value.

The appellee contends that this is the true measure of the liability of the bank, while on behalf of the appellant the position asserted is that he is entitled not merely to the value of the goods, but also to recover for the destruction of, or interruption to his business, and also for the loss of credit which is claimed to have resulted from the levy of the attachment;' or to state it in a different way, what is the proper measure of damage which a party can recover, whose goods have been taken and whose business has been broken up or interrupted by the levy of an invalid attachment? The appellee relies for his position upon that class of cases where there has.been a conversion by one party of the .goods of another, and in which the rule of damage is well established to be the value of the goods at the time of the taking, together- with interest from that ⁴⁰⁰ date down to the time of trial. These cases, however, which arise out of conversion of the goods of a party, do not take into account at all the loss which may he occasioned by the breaking up or interruption of business, a loss generally determined by the profits of the business, therefore the cases of conversion or of trespass de bonis asportatis